Meet Mark Radcliffe: The man who rules open source law

As one of his clients told us, "Mark Radcliffe is the law when it comes to open source software."

Radcliffe, an attorney at giant DLA Piper, has lurked behind some of the most important shifts in the open source world over the past few years. He helped Sun Microsystems open source the Solaris operating system, developing Sun's CDDL (Common Development and Distribution License) license. He crafted SugarCRM's controversial attribution license and then did similar work for a handful of significant open source players. This year, he teamed with SocialText to push the CPAL (Common Public Attribution License) through OSI (Open Source Initiative) approval, while at the same time advising the OSI as legal counsel. And Radcliffe worked with the Free Software Foundation on v3 of the General Public License (GPL).

Matters such as SCO's Linux assault and Microsoft's hints of legal action against open source software makers and users tend to dominate the public discourse around open source code.

The projects that Radcliffe has touched, however, stand as far more substantial to the evolution of of open source software as it marches into big and small business. Radcliffe now looms as the dominant force shaping the restrictions/permissions around open source software (OSS), but few people outside of the core OSS kingdom are aware of the scope of his work.

Radcliffe's power in the open source world has not escaped controversy. For example, some of the open source world's most rabid vocal members went after his attribution licenses, which often require the display of a company's logo by users of a given product. More than a dozen open source players have crafted their own attribution licenses - a derivative of the Mozilla Public License (MPL) - outside of the OSI's official "open source" blessing. This influx of attribution licenses has prompted some to present horror scenarios of logos filling up your screen in a badgeware meltdown.

The OSI railed against these attribution licenses just before the organization approved the CPAL license in July. So, you find Radcliffe championing a license of his making, while advising the OSI on its merits at the same time.

Mark Radcliffe

Was Radcliffe miffed by the open source "community's" shock and horror over the attribution licenses?

"I was a little bit surprised," he told us. "We thought what we were doing was totally consistent with the open source definition.

"Attribution and giving people credit for what they've done is kind of at the core of the whole open source philosophy from my point of view. So, I didn't see attribution as being the big, evil thing that everybody was concerned about."

Of course, the open source "community's" initial response to just about anything tends to veer toward apocalyptic scenarios - in this case a world destroyed by logos. Rather than tempting reality, the members of the never-ending car crash known as the "license-discuss" mailing list, where all the really important OSI matters are handled, embraced conniption.

"You know, if you don't like something, give it an evil name and come up with these hypotheticals that don't exist in the real world," Radcliffe said.

"It is interesting to me that in all of the discussions on license-discuss the problem that people were talking about, which is that attribution would somehow limit the number of people who are willing to distribute the product and it would destroy the marketing, I don't remember any comment from any distributor of any of the products using open source except a positive one.

"So this big problem that a couple of the people on license-discuss were postulating as to how this was going to destroy open source just had no basis in fact."

Through the efforts of Radcliffe and SocialText's CEO Ross Mayfield, CPAL has arrived as a viable open source license that delivers the attribution clause as well as a network use clause that regulates how service providers, for example, can make use of code. Companies such as Mulesource have already picked up CPAL, and more of the attribution license crowd is expected to follow suit.

Radcliffe dismisses the contention that his influence with the OSI ultimately generated any favoritism for CPAL.

"There are some people who seem to have developed this enormous conspiracy theory, and, if they're right, then I am probably the most inefficient conspirator in the world, since it took me eight months to get CPAL through."

But, let's move away from the OSI and CPAL to get "the law's" take on some broader issues facing the open source "community."

Network abuse

The once activist open source "community" appears ready to let the likes of Google and Yahoo! trample all over it. These types of service providers consume vast amounts of open source code and give, depending on the instance, relatively little work back. Google, for example, says it has contributed about one million lines of open source code and sponsors things such as Ubuntu downloads. Meanwhile, the ad broker has vowed to write around any code that's placed under a license that would force it into uncomfortable returns of work. The giant sucking sound is audible throughout Silicon Valley

So, the question of the day is how long service providers will be tolerated as open source vacuums. The Free Software Foundation avoided this issue with GPLv3 but has produced the Affero General Public License (AGPL) to cover the use of code that's delivered over a network, as opposed to on disk or by download as in the past. In addition, you have CPAL, as mentioned, with its service provider provision.

"I think it's an option people should have, but the problem with trying to impose a mandatory network use clause in a generally used license is that it doesn't reflect the realities of the way the market has moved," Radcliffe said.

"We are really at the front end of this whole software as a service trend. Nonetheless, there are people that have developed pretty strong expectations about what they can do with software. The concern on my committee [working on GPLv3 for the FSF] was that if we put a mandatory network use clause in GPLv3, it would severely hinder its adoption simply because it would upset peoples' expectations."

And what of beast Google and the others with such voracious appetites for the work of others?

"If I could wave a wand and say, 'What would the best thing in the world be,' yeah, I would say that it would have been better if ASP clauses had been in open source licenses forever.

"Beyond Google, there are banks and others that are making things available as a service, and you have to deal with the reality of their expectations. They do have a choice. They can choose a different license. They can choose not to use open source software."

Microbound

On the expectations front, no company has worked harder than Microsoft to lower open source in the minds of customers both from legal - cancer, communism, 'we might just sue' - and product - Get the Facts - angles. Despite Redmond's protestations, open source software continues to find a prominent place in the data centers of some of the world's most conservative, large companies.

"All of Microsoft's FUD has ended up redounding against them because some of the things they have said have been so ludicrous that it has severely undercut their credibility in other areas.

"This whole campaign about Linux violating Microsoft patents has been a big flop. From my point of view, there doesn't seem to have been a big shift of people going to Suse Linux because they have this covenant not to sue.

"I think that Microsoft has recognized that open source is here to stay. They can't simply make it go away by saying, 'It is not ready for prime time' or 'Nobody would base their business on it' because it's transparent that large companies like Google and some of the major banks are basing their company on it."

The Law Speaks

When reflective, Radcliffe admits to enjoying his role as a shaper of open source software and companies' business models through his work with both corporate and IP law. He moved to Silicon Valley from the East Coast more than two decades ago with the intention of getting stuck into technology and honing his skills as a specialist in one field. Radcliffe has certainly met these goals.

"One of the things I love about being in Silicon Valley is that you get to deal with companies that are inventing the future," he said. "Particularly since I do both corporate and IP, I basically help them construct their business model. Certainly, open source is one of the most interesting things that has come along not only from a legal point of view but also from a business point of view.

"It is a very exciting time to be an intellectual property lawyer." ®

Bootnote

You can find Radcliffe and a webinar he hosted on open source legal issues here.